The thinking behind this blog is really simple: The guilty should be prevented from reoffending and the innocent should not be convicted -- not very complex but often not achieved.

The spotlight is also thrown on feral law enforcement

Monday, July 31, 2006

THE PENALTY OF A CORRUPT POLICE FORCE

People disbelieve them even when they have got it right

ABC Television's award-winning Australian Story has been accused of crossing the line between journalism and advocacy in an unprecedented series of programs claiming three West Australian men were wrongly convicted of murder. In the final episode of a three-part investigation, Australian Story will tonight examine the alleged murder of Phillip Walsham, 21, who fell to his death from a pedestrian bridge over a freeway in the Perth suburb of Stirling in February 1998. West Australian police believe a group of teenage louts armed with tyre levers found Walsham sitting, alone and drunk, on a bench near a train station. They say the youths kicked him in the head without provocation, then pushed or threw him over the footbridge to his death.

But Australian Story has broadcast claims that the teenagers -- now men in their mid to late 20s -- were wrongly convicted by a jury in March. While the men do not deny they were armed with tyre levers, and admit they kicked Walsham in the head, they insist they left him sitting on the bench and did not follow him on to the footbridge.

West Australian Police Commissioner Karl O'Callaghan has condemned Australian Story, accusing the program and its staff of mounting a campaign to get the conviction overturned. It is not journalism, it is advocacy," Mr O'Callaghan said after he had seen the first program in the series. "There were quite glaring events that could have provided a different point of view which were simply left out."

Australian Story has focused on Mirella Scaramella, the photogenic girlfriend of one of the men, who program presenter Caroline Jones says "turned detective" in an effort to "uncover the truth of what happened that night and get the murder charge dropped". It is clear many of the staff working on the program also believe that the West Australian police, reeling after several high-profile convictions were overturned, got it wrong.

But on March 7, a jury disagreed. It convicted three of the men of murder, and they are now serving 10 years in prison. Inspector Jon Tuttle of the West Australian police media unit said Australian Story was "telling a story, but it's a story the jury didn't believe". Inspector Scott Higgins, who assembled the evidence that led to the conviction, said: "I have no doubt -- or no reasonable doubt, since I suppose nobody can ever be 100 per cent sure -- that we got the right people. "There are a group of people, lawyers and journalists among them, who are campaigning to get all kinds of convictions overturned as if justice in WA is completely rotten, and it is a symbiotic relationship because the defendants all want to get off, the journalists want a good story and maybe a book or prize and the lawyers want the publicity." Series producer Wendy Page would not agree to an interview. But acting executive producer Philip Williams said in an email approved by lawyers: "This is our first triple episode. This doesn't mean we attach any greater significance to this story ... It's simply this is a very complex tale, involving many players: the accused and their families, the parents of the victim, the Police Commissioner, the investigating officer, the DPP and others."

The facts of the case -- at least up to the point when Phillip Walsham fell to his death -- are barely in dispute. A group of friends -- including Salvatore Fazzari, Jose Martinez, Carlos Pereiras and a juvenile who cannot be named -- went nightclubbing on Friday, February 27, 1998, and stayed out drinking until the small hours. They were on their way home about 2.15am when they passed a pedestrian who threw a tennis ball at their car for refusing to give him a lift. The group stopped, got two tyre levers out of the boot, and gave chase. The pedestrian saw them coming and ran across a footbridge with his friend. They escaped in a taxi.

Frustrated, the group descended from the footbridge, where they found a drunk Walsham -- 21 and also on the way home from a night out -- sitting on a bench with his head in his hands. In an unprovoked attack, Fazzari kicked Walsham in the upper body; Martinez kicked him in the head. Fazzari told the program: "I kicked him once, which wasn't the right thing to do, but it was a moment of frustration." Martinez said: "He didn't do anything to me. He didn't provoke me. I just took my anger out on him I suppose. It was to his head and it was a horrible thing to do."

Two girls who had been in the car were so astonished and offended they refused to have anything more to do with the youths, and decided to walk home. The youths drove away. The girls then checked on Walsham. He was still sitting on the bench, bleeding from a cut above his eye but said that he was OK. The last time the girls saw him, he was walking towards the footbridge.

The youths told police they went to McDonald's. But police claim they returned to find Walsham on the footbridge where they beat him with the tyre lever and threw or pushed him to his death on to the Mitchell Freeway. In 1998, Fazzari and Martinez were charged with assault for kicking Walsham. They pleaded guilty and were fined $1500. The case lay dormant until 2001, when Inspector Higgins joined the Major Crimes Unit and decided to review the evidence. In April 2003, he referred the matter to state coroner Alistair Hope, who decided Walsham had probably been beaten with what looked like a tyre lever and subsequently pushed or thrown off the footbridge, probably by whoever had been wielding the tyre lever. The matter was referred to the Director of Public Prosecutions, and on March 31, 2004 -- six years after Walsham died -- the four were charged with wilful murder. The first trial was held in May last year. The jury could not reach a verdict. But in the second trial, the jury found Martinez, now 28, Fazzari, now 27, and Pereiras, now 26, guilty of murder.

Among those startled by the verdict was Bret Christian, multi-millionaire proprietor of the Post group of newspapers that circulate in Perth's affluent western suburbs. He is now campaigning for "justice for the men". Mr Christian told a rally of 200 people last week the verdict should be overturned. "People in Perth have two points of view on this case," Mr Christian told The Australian. "They either say, well, they kicked this guy in the head and 15 minutes later he's found dead, and what's the chance of it not being them? Or else they say, they were running around with tyre levers, they are shitheads, and why take up the case of shitheads? "But it's wrong, just plain wrong, to throw somebody in jail for throwing somebody off a bridge when the facts just don't add up to a conviction." Mr Christian makes some good points: there are no witnesses to the crime, and there is no forensic evidence to link the youths to the murder. In another twist, scrapings from under Walsham's fingernails that might have revealed fibres or DNA have gone missing, as have X-rays of Walsham's legs.

But somebody did see Walsham's body fall: Clare Pigliardo told the court she was in the front seat of a car stopped at traffic lights when she saw a body do an "athletic backflip" off the bridge and "hit the road and bounce". Australian Story included this information in the first episode of Beyond Reasonable Doubt -- but it excluded a critical additional fact: Ms Pigliardo also said Walsham was not alone when he fell, but was surrounded by a group of two, three or four men. This was included in the second episode of the program.

Viewer reaction has been mixed. On the Australian Story website's feedback page, one says: "From all that has so far been depicted on Australian Story, these boys are innocent, however are not being given a fair trial." Others disagreed: "This story is extremely biased. These four men repeatedly say they could never have killed but they can look for a fight when armed with a tyre lever AND can kick a man in the head, unprovoked."

For his part, Inspector Higgins said: "We've never denied that it's a circumstantial case." But he said the evidence suggested Walsham was hit hard with something resembling a tyre lever. The distinctive C-shaped mark on his shoulder was "not damage from hitting the kerb or the road, or being hit by a car". He said it was too far-fetched to believe another group of men wielding tyre-levers accosted Walsham on the footbridge. He said police had "absolutely no problem" with Australian Story taking up the case. "But you can't dolly it up, and call it the search for the truth. They just don't like the jury's decision."

But Mr Christian -- who sat through weeks of evidence while reporting the trial in a series of front-page articles -- says it is insulting for police to suggest "we're just a bunch of journalists patting each other on the back". "There is plenty of evidence that police have got it wrong before," he said. "We are doing exactly what journalists are supposed to do. Wouldn't it be worse if we observed this stuff and didn't say anything, and just became cheerleaders for the cops?"

Sunday, July 30, 2006

Canadian prosecutors BOUGHT crooked testimony

The Manitoba Justice Department gave in to demands for money from a witness who testified against James Driskell at his murder trial, according to documents tabled Monday at the inquiry into his wrongful conviction. The demands came from John Gumieny, a witness who testified against Driskell at his murder trial 15 years ago. Driskell was sentenced to life in prison for the first-degree murder of his friend, Perry Harder in 1991. Harder had been shot several times in the chest in September 1990 in Winnipeg.

After testifying, Gumieny was placed in a witness protection program for six months. In RCMP documents tabled at the inquiry Monday, one justice official called the demands for payment nothing less than extortion. Justice officials expressed in the documents how they didn't want to give in to the demands, but they did anyway. The documents show Gumieny threatened both police and justice officials more than once.

An internal Winnipeg Police Service document said Gumieny "stated if he doesn't get what is promised to him, he will contact Driskell's lawyer and the investigator hired by the lawyer and relate that he was coaxed into fabricating some of his evidence, unless he receives what was promised to him."

Federal justice officials quashed Driskell's conviction in March 2005, saying they believed a "miscarriage of justice" had likely occurred in the case. The Manitoba government stayed the charges, which keeps Driskell out of prison but does not officially exonerate him. The inquiry is scheduled to run for five weeks.

Saturday, July 29, 2006

Australia: Blitz on lawyers who fail to tell all

If this were happening in the USA, a lot of prosecutors and police would be facing jail

A crackdown has been launched against Queensland lawyers who allegedly withhold facts that could damage their clients' cases. Prominent Brisbane barrister Gerard Mullins, who is representing victims of rogue Bundaberg surgeon Jayant Patel, is the first of several lawyers to face charges of professional misconduct for allegedly failing to disclose critical information in lawsuits in which they appear. The Queensland Legal Services Commission, the independent body charged with investigating lawyers, has brought the action as part of a crackdown that could lead to fines and even the disbarment of barristers and solicitors found guilty of the charges.

The commission has accused Mr Mullins of failing to disclose the existing medical condition of a client he was representing in a 2003 claim for damages arising from a car accident. According to documents filed in the District Court in Brisbane, Mr Mullins's client, a builder, was left a quadriplegic after the motor accident. During mediation with insurer Suncorp Metway, the commission said Mr Mullins had argued that his 48-year-old client had a normal life expectancy. Suncorp settled the claim for more than $1 million. But the commission said that during the mediation, Mr Mullins became aware his client had been diagnosed with cancer that had riddled his body. In the documents, the commission said Suncorp would have settled for a "significantly lesser sum" if it had been made aware of all the facts. "Alternatively, to the knowledge of the respondent (Mr Mullins), if Suncorp had known the undisclosed facts, it would not have proceeded to negotiate a settlement of the claim until it had ascertained the claimant's true likely life expectancy," the commission said in its disciplinary claim.

"On September 19, 2003, the respondent advised his instructing solicitors in writing that neither the respondent nor his instructing solicitors were under any obligation to disclose to Suncorp the facts relating to thecancer. "It was the professional duty of the respondent to reveal the undisclosed facts to Mr Kent (Suncorp's counsel) and to Suncorp before any settlement was reached." Mr Mullins declined to comment on the action yesterday. The regulatory body was set up in 2004 after criticism of theperformance of the Queensland Law Society in investigating complaints against the legal profession.

Friday, July 28, 2006

MAFIA COPS GET OFF ON A TECHNICALITY

Andy Warhol once likened snappily dressed New York defence lawyer Eddie Hayes to a character from the 1970s sitcom Laverne and Shirley. Hayes, Warhol said, was the kind of person invited to parties "to wear funny clothes and jump around and make things kooky". But underneath the cultivated eccentricity, Hayes, the inspiration for the fictional Irish attorney Tommy Killian in Tom Wolfe's The Bonfire of the Vanities, has always been deadly serious about his ability as a lawyer. He wasn't joking when he told Warhol: "I can get you outta anything." Earlier this month Hayes lived up to the boast again when a federal judge overturned guilty verdicts against former New York detectives who have been dubbed the "mafia cops": Louis Eppolito, 57, and Stephen Caracappa, 64. It was a spectacular finale to one of the most scandalous police corruption trials in US history.

In April, Eppolito and Caracappa were convicted on 70 counts of racketeering, charges that included eight murders for the mob. But in a legal twist that shocked Americans, the killers were acquitted on a legal technicality after Hayes and co-counsel Bruce Cutler successfully argued the case against their clients was in breach of a federal statute of limitations.

Yesterday the case took yet another dramatic turn when the same judge, Jack Weinstein, 84, refused to release Eppolito and Caracappa when they appeared before him seeking bail on the one charge on which they together face retrial: a minor drug deal involving 28g of methamphetamine and a few ecstasy pills. Normally, bail in such a case would be routine, but Weinstein said the retired cops were dangerous criminals who represented a flight risk and ordered them returned to their shared cell at the Metropolitan Detention Centre. There they'll stay while state and federal legal authorities mull over how they can be made to pay for their crimes.

The evidence laid out against them in their trial was compelling and shocking. It established that the highly decorated former detectives had worked for the Lucchese mafia family under Anthony "Gaspipe" Casso from the early '80s until their retirement to Las Vegas in the mid-'90s. For a shared monthly retainer of $US4000 ($5277), Eppolito and Caracappa briefed Casso on police investigations and the identity of police informants. Sometimes, when there was extra money on offer, they acted as hit men. The evidence directly linked Eppolito and Caracappa to eight gangland slayings between 1986 and 1991. Some of the victims were mobsters such as Jimmy Hydell, who was ostensibly arrested by the duo and delivered to Casso, who in turn tortured and killed him. Others were innocent citizens who came to know something of mob activities and had to be eliminated. One, a young telephone company technician named Nicholas Guido, was confused with a mobster of the same name. After the mafia cops gave Casso the wrong address, the wrong Guido was shot dead in the front yard of his mother's house on Christmas Day 1986.

With its lurid allegations and roster of Sopranos-style witnesses, the trial kept New York spellbound. Hayes's client, Caracappa, had been in the New York Police Department's elite major case squad and had helped establish a special unit for mafia murder investigations. Eppolito's family links with the Gambino crime family were explored in detail. His grandfather Luigi the Nablidan had associated with gangsters Charles "Lucky" Luciano and Carlos Gambino in the Depression years. As a teenager Eppolito had watched on television as New York gangster Joe Valachi ratted out the inner workings of the Cosa Nostra to a US Senate inquiry and named many who were not only friends of his father, Ralph "Fat the Gangster" Eppolito, but regular visitors to their house in Brooklyn's East Flatbush neighbourhood.

That much of this had already been published in Mafia Cop, Eppolito's 1992 autobiography, in which he portrayed himself as an honest cop who had rejected underworld culture, made it no less fascinating. In retirement Eppolito had played the gangster Fat Andy in the movie GoodFellas and had tried his hand at script writing.

On sentencing day, when the families of the victims finally had their turn to speak, the full horror of crimes committed behind one of the world's great law enforcement badges was revealed. Among the anguished relatives was Michal Greenwald, 30, the daughter of jewellery merchant Israel Greenwald who was murdered because Casso thought he might reveal information about mob money laundering activities. Looking into their cold, unflinching faces, Greenwald told Eppolito and Caracappa: "You took away our daddy and by doing that you took away our childhood. You took away our mother. You stole our innocence. You filled our nights with nightmares and our days with torture."

Assistant US Attorney Robert Henoch told the court Eppolito and Caracappa were totally unrepentant. "Police are supposed to protect people," Henoch said. "We don't have death squads here; at least we aren't supposed to." Weinstein called the crimes the most heinous ever tried in his courtroom and gave the former detectives two life terms in prison and million-dollar fines. But he delayed sentencing to consider pre-trial motions put by Hayes and Cutler.

Eppolito and Caracappa were charged under the federal Racketeer Influenced and Corrupt Organisations Act with a wide-ranging conspiracy involving murder, kidnapping, obstruction of justice, drug dealing and money laundering. For the charges to stick, the prosecution had to prove that a racketeering conspiracy existed within five years of the date of arrest. To that purpose the FBI co-opted a Las Vegas accountant named Stephen Corso who, in 2005, convinced Eppolito that he had four investors who might be prepared to back one his movie scripts. The deal would hinge on the Hollywood boys coming to Vegas and having a good time on designer drugs. When Eppolito and Caracappa arranged 28g of crystal meth and a half-dozen ecstasy pills, the prosecutors had the evidence they needed of continuing racketeering activity. Or at least they thought they did.

From the start of the case Weinstein said the statute of limitations was the "weak link in the Government's allegations" and urged prosecutors to consider alternative charges. One clear option was to prosecute the murder and kidnap elements of the case under state law where no statute of limitations exists. When the prosecutors stuck with their federal strategy, few in New York's legal community were surprised. "For a whole range of procedural reasons, the federal court system is much more prosecutor friendly than the state system," says Don Murray, of Queens, New York-based law firm Shalley and Murray. "For example, jury selection in the federal court is virtually nonexistent. It is a very difficult place to practise criminal defence."

The case proceeded, but with Weinstein reserving judgment on the submissions put by Hayes and Cutler. Then, in a decision that stunned New Yorkers and left the District Attorney's office flabbergasted, Weinstein declared Eppolito and Caracappa acquitted on all charges except the drug-dealing count and a money-laundering charge to be faced by Eppolito alone. In a 77-page explanation, Weinstein said the evidence had overwhelmingly established that Eppolito and Caracappa had "kidnapped, murdered and assisted kidnappers and murderers, all while sworn to protect the public against such crimes".

But he found the prosecution had failed to establish a continuing conspiracy, saying "sporadic acts of criminality" by Eppolito and Caracappa since their retirement from the NYPD were unrelated to their previous ties to the mob. "Once the two defendants had both retired from the police force and re-established themselves on the opposite side of the country, the conspiracy that began in New York in the 1980s had come to a definite close," Weinstein said. "The evidence presented at trial overwhelmingly established the defendants' participation in a large number of heinous and violent crimes. Nevertheless an extended trial, evidentiary hearings, briefings and argument establishes that the five-year statute of limitations mandates granting the defendants a judgment of acquittal on the key charge against them: racketeering conspiracy."

Weinstein conceded that many people would be mystified that criminals as despicable as Eppolito and Caracappa could go "unwhipped of justice". But in comments that some regard as relevant to the circumstances of Australian terror suspect David Hicks at Guantanamo Bay, Weinstein said: "Our constitution, statutes and morality require that we be ruled by the law, not by the vindictiveness or the advantages of the moment."

Giving notice of an appeal, US Attorney Roslynn Mauskopf emphasised the integrity of the jury decision. "Based on the law that was given to them by the court, each of the 12 jurors specifically found that the defendants' heinous crimes were committed within the statute of limitations," she said.

If the appeal fails the question then becomes whether murder charges will be laid under New York state law where no statute of limitations exists. "In US law there's a principle called separate sovereignty, which means federal and state authorities can prosecute the exact same crime without running afoul of double jeopardy," explains defence attorney Murray. "If you get charged with something under federal law and go to court and win, the state government can turn around and charge you with exactly the same thing. I often have to explain this to clients and they're horrified. They say: 'How can this be. I was tried and acquitted. It's double jeopardy.' But it's not."

For the time being Eppolito and Caracappa will remain locked away in the federal detention centre in Brooklyn. But by the end of next month they could well be walking the streets again, a prospect making the families of their victims relive the agony.

Thursday, July 27, 2006

AN OVERDUE MOVE

North Carolina convicts adamant about their innocence may get a new venue where they can plead their cases. Lawmakers gave final approval Wednesday to a measure that would establish a commission with the sole purpose of investigating and uncovering cases of wrongful conviction. No other state has a similar commission and it needs only the signature of Gov. Mike Easley to become law. "This is one thing that we can do to renew public confidence in our judicial system," said Rep. Rick Glazier, D-Cumberland, the bill's author. "When we make mistakes, we'll have a fail-safe mechanism to get it right."

For nine years, Glazier, a Fayetteville attorney, represented a former Camp Lejeune Marine who was convicted of rape in 1982 despite four witnesses who testified in his defense. Lesly Jean was exonerated in 2001 only after DNA evidence cleared him of the crime. "We have to recognize that, sometimes, our system can make a mistake," Glazier said.

A coalition formed by then state Supreme Court Chief Justice I. Beverly Lake Jr. formed in 2002 study the state's criminal justice system and recommended that the state establish a legal authority to investigate cases of declared factual innocence. But some lawmakers, including Rep. Joe Kiser object to the commission as an unnecessary layer of judicial oversight. "The court system that we have works very well," said Kiser, R-Lincoln. "I don't believe this system will work one bit better than it does now."

Under the latest proposal, an eight-member committee would determine if claims were credible based only on new evidence not considered in trial. If five of the eight panel members agree, the Chief Justice would appoint three judges who must unanimously determine that there was "clear and convincing evidence" of the prisoner's innocence.

For the first two years of the commission, prisoners who have pleaded guilty will not be able to present their cases. For the next two years, such prisoners could come before the commission, but would have to receive an unanimous endorsement from the panel before the case could go before the judges' panel.

The North Carolina Conference of District Attorneys objected to that proposal. "It's kind of making a mockery of the system," said Garry Frank, president of the DA's coalition. "After someone pleads guilty, it's turning the system on its head to have a commission at the end of the road (that would) allow a person to then pursue innocence."

Glazier contends some innocent prisoners have pleaded guilty. The commission is modeled after a system already in place in the United Kingdom. Since its inception in 1997, the U.K.'s Criminal Cases Review Commission has scrutinized more than 8,500 cases. The body has sent about 4 percent of appeals back to court and 220 cases have resulted in overturned convictions.

As in many other states, winning a post-conviction reversal can be difficult in North Carolina. Defense attorneys have long argued that the innocent stand little chance of being freed once they are sent to prison. "When judges have hundreds of motions for relief come over their desks, it's difficult," said Chris Mumma, executive director of the N.C. Center on Actual Innocence, a nonprofit created to advance credible innocence claims. "As it is right now, they're just looking for needles in haystacks."

A former Marine falsely imprisoned for rape was pardoned yesterday by Gov. Mike Easley after a second round of DNA testing showed he was innocent. Lesly Jean, 41, of New York City served nine years in state prison after he was convicted of the 1982 rape of a Jacksonville woman. Jean was released from prison in 1991 after a federal appeals court overturned his conviction.

Jean's reaction was "tears of joy," said one of his attorneys, Richard Glazier, of Fayetteville. Jean was in New York when he heard the news. "He was completely overcome," Glazier said. "Having fought this battle for 18 years and now having everyone understand and having the governor say he was innocent makes him the happiest man I know."

The pardon means Jean could be eligible for a maximum of $150,000 in compensation from the state for wrongful imprisonment. Glazier said the full amount would be sought in filings next week with the N.C. Industrial Commission.

"Lesly Jean was forced to pay a debt to society he did not owe," Easley said. "While the state can never give him back the years of freedom he lost while behind bars, this pardon of innocence fully exonerates Mr. Jean for the crime and makes him eligible for financial compensation."

Jean's attorneys asked Easley last month for the pardon after one DNA test showed he wasn't the rapist. The governor's pardon came after a second DNA test was performed this week at the request of the district attorney for Onslow County. The pardon was the first of Easley's administration. Before he left office Jan. 6, former Gov. Jim Hunt granted 39 pardons, ranging from people who were convicted of tax evasion and violating the state bingo law to drug violations and kidnapping. Easley asked the state attorney general to check DNA databases to determine if evidence left by the attacker could be linked to another person.

At his trial, it was revealed that hypnosis was used to help the victim and a police officer identify Jean. Jean was arrested after the Jacksonville police chief saw him in a doughnut shop and thought he matched the rape victim's description of her attacker.

Jean was convicted despite testimony from four witnesses who said that he was on base at the time of the rape. He was released from prison in 1991 after a federal appeals court said prosecutors wrongfully concealed the hypnosis.

Since his release, Jean has tried to establish his innocence and lives in the Bronx with his wife and family. A native of Haiti, Jean said earlier this year that the Marine Corps was his dream come true and that he hasn't been able to find lasting work since his release. Jean's dishonorable discharge from the Marines has been changed to honorable, allowing him to get Veterans Administration benefits for post-traumatic stress syndrome.

Wednesday, July 26, 2006

BRITAIN GOES SOFT ON MUGGERS

A lot of huffing and puffing but new "escape clauses" should ensure minimal punishment for most

Teenage muggers who rob with “minimal force” will be spared jail under new sentencing guidelines released yesterday. Juvenile muggers can also cite peer pressure as a mitigating factor, the Sentencing Guidelines Council says. Custody should be imposed routinely by the courts because robbery is a serious offence, the guidelines say; and there are few circumstances where a conviction will not result in a jail sentence. But a non-custodial starting point is considered to be justified where a young offender includes the threat or use of minimal force.

The council, chaired by Lord Phillips of Worth Matravers, the Lord Chief Justice, expect the guidelines to lead to a more consistent approach — pushing some sentences “up the scale”. Sentences will be particularly severe where a weapon is involved, the robbery is by a gang or at night, a disguise is used or the victim is chosen for his or her vulnerability. Carrying a weapon, for instance, even if it is not used, is likely to lead to a longer jail sentence. Kevin McCormac, secretary to the council, said: “Broadly sentences will be the same as at present under these guidelines. But they do fill in some gaps and will iron out inconsistencies which could lead to increases in some cases.”

Home Office figures released last week show that the average sentence length for robbery fell from 38.1 months in 1996 to 35.4 in 2001. They have since risen to 38.4 months. At present about one in three offenders aged 15 is jailed, rising to two in five for 16-year-olds and three in five for 17-year-olds. Those aged 18 to 20 are jailed in five out of six cases and adults over 21 are jailed in eight out of nine cases. The guidelines mainly follow the draft proposals issued in November last year and take account of the views of Parliament, the Home Secretary and other ministers.

But juvenile robbers will be able to put forward peer pressure as a mitigating factor when being sentenced, an idea proposed by Home Affairs Select Committee, which suggested that judges should treat young robbers differently if a crime was committed in a group.

David Davis, the Shadow Home Secretary, dismissed the idea yesterday as unprovable. “How do you prove peer pressure?” he asked. “This would simply be a get-out-of-jail-free card for the cynical type of criminal that commits violent robbery in the first place. “Robbery is one of the most serious crimes. It causes real and lasting distress and alarm to victims. The new guidelines send entirely the wrong message about how we deal with this offence.”

The guidelines, which come into force on Tuesday, state that “there may be factors of greater significance in cases involving young offenders including: age of the offender, immaturity of the offender and group pressure. Sentencers should recognise the varying significance of these factors for different ages.”

Tuesday, July 25, 2006

A LEGAL ATTACK ON CARING

As stupid as most "malpractice" litigation

Doctors and nurses may not stay behind during another New Orleans hurricane in fear they could be the next targets of state prosecutors accusing three colleagues of murder during Katrina, medical professionals said on Monday. Many New Orleans residents feel Dr. Anna Pou and nurses Lori Budo and Cheri Landry are heroes who labored for days to treat patients after Katrina hit, after politicians and many police had fled the city. If the case goes to trial, residents said they doubted a local jury who witnessed Katrina's devastation would convict.

Pou, Budo and Landry are accused of administering a "lethal cocktail" of drugs to four patients at Memorial Medical Center, one of the best hospitals in the city, which became a flooded realm of misery after the storm. The alleged victims were judged incapable of being moved and killed as the hospital was being abandoned, state Attorney General Charles Foti said after arresting the three last week. New Orleans District Attorney Eddie Jordan plans to take the case to a grand jury, a spokeswoman has said.

When hurricanes approach New Orleans and other cities, many of the most seasoned physicians and emergency personnel volunteer to stay behind to help, even as others evacuate. For medical professionals, the accusations represent a new danger of hurricane duty some are unwilling to face. "I think it is going to change a lot of people's attitudes toward volunteering. It makes me hesitant," said Sheri Narcisse, 31, a nurse who has stayed through two hurricanes.

Murder charges could bring sentences of life in prison, but dangers also include difficulty with careers and civil suits. "The amount of volunteers is going to be drastically reduced if there is another hurricane because they are not going to take the chance," medical equipment salesman Ray Landry said, citing chats with doctors.

Louisiana State University, where Pou is an associate professor and which has a major medical complex, has fielded many similar complaints, spokesman Charles Zewe said. "We hadn't expected the doctors and nurses to say, 'Next time around, we may not be there,"' he said.

Monday, July 24, 2006

MORE DUBIOUS EYEWITNESS IDENTIFICATION

On a warm July morning in 1976, Joan Young noticed something odd in the midst of her Cumbrian holiday vista. Sitting in her car on the shore of Coniston Water, her gaze was drawn to a small yacht floating some way offshore. A slim, long-haired man in a wetsuit was lifting what the Scots tourist would later describe as a "heavy bundle" on to the side of his boat. She watched, puzzled, as he toppled it into the water. Was it diving equipment? An old carpet? "I only hope it isn't his wife," she quipped to her future husband, reading his paper beside her. It was an uncannily prescient remark - yet it would be more than a generation before her memory would form the sole eyewitness account in one of the most high-profile and controversial murder convictions of the decade.

Today, Jeremy Park paces the same shoreline with restless scepticism, scrutinising the waters where his now-imprisoned father is supposed to have dumped his mother's weighted body. It's exactly 30 years since Carol Ann Park disappeared from the family home near Barrow-in-Furness, leaving three bewildered young children and a stoical husband to ponder wedding rings abandoned on the bedside table. Only six at the time, Jeremy grew up believing his mother had left them - as she had done repeatedly before - for one of her various lovers. It was only in 1997 that amateur divers chanced upon a macabre, tightly bound package resting on a ledge in 70ft of water. "The Lady in the Lake", as she was inevitably dubbed, had been trussed in a series of bags, her well-preserved corpse clad only in a short nightdress. A coroner found she had drowned in her own blood after heavy and repeated blows to the head.

The discovery was a double shock for Jeremy, by then an IT consultant working in Edinburgh. One parent was instantly transformed from deserting mother to murder victim; the other her possible killer. It was Jeremy who phoned his father, who was on holiday in France with his third wife, to break the news. "He said, `Oh dear', and went very quiet," recalls the 36-year-old, who has never doubted his father's innocence. "He was obviously shocked - and he knew he was going to be the main suspect."

For the family, it marked the beginning of a new nightmare. Even as the couple packed up and began the journey home to Barrow, television reports were showing police forensic teams combing their home for evidence. On arrival, Park was arrested, charged and remanded for 14 days "for his own protection". The media had already enjoyed more than a week of speculative feeding frenzy - a titillating murder mystery at the heart of a traditionally news-starved August. But despite police searches, the evidence after 21 years was sketchy, circumstantial and ultimately insufficient. In January 1998, prosecutors dropped their charges and Park walked free. It didn't stop the speculation, however - after an estimated 300 press articles that followed the discovery of the body, came true crime documentaries and even a fictional BBC drama called The Lakes, in which a husband murders his wife and dumps her body from his boat.

Then, in 2004, the crown reinstated charges, armed with new witnesses and evidence: experts in knot-tying to analyse the body parcel; rocks trawled from the lake bed and allegedly similar to some used in Park's self-built home; two `prison snitches' prompted by a TV documentary to claim they had heard a jail-cell confession from Park while on remand; and Mrs Young, her long memory similarly jogged by publicity. It looked at first sight a formidable raft of evidence but, more importantly, believes Jeremy, the further six-year lapse had only heightened emotions in an already prejudiced trial. He is convinced his father was found guilty in the court of public opinion long before the judge sentenced him last year to 15 years in Manchester's Strangeways prison.

Which is why he has brought me back to the scene of his mother's grim concealment today - in the hope a more level-headed assessment will show the bloody waste of her murder is now being compounded by a gross miscarriage of justice. Backed by a campaign team composed of friends and family - the people who know Gordon best - he is about to demonstrate how each of the planks of his father's conviction is dangerously flawed. "Look at that steamer," he says, pointing at the tourist gondola passing us a few hundred metres offshore. "Can you really see the details of people even at this distance?" Even directly ahead of us, the passenger profiles are indistinct against the reflected sky - and this shore-side spot identified by Joan Young and her husband is more than a mile north of the site where the body was discovered, today barely visible behind an island.

Coming forward for the first time in 28 years after hearing of the re-arrest of Park in 2004, Mrs Young insisted to police she must have used binoculars, so vivid was her memory of the bespectacled face she saw: a male with "brown or auburn" hair that was "wavy or curly". It proved an unfortunate detail: in fact, says his son, Gordon Park's hair has always been straight and very dark. Unsurprisingly, the prosecution chose to focus on Mrs Young's more generic description of a tall, slim man in a wetsuit and spectacles. She placed the date of the sighting around the end of July 1976 - as it was the year her husband proposed to her. Mr Young, meanwhile, provoked smirks in court by failing to remember any such thing. "I'm sure Mrs Young is perfectly sincere about what she's seen," says Jeremy. "I'm just not sure it had anything to do with us. I don't think she's malicious. But sometimes, particularly after so many years, we see what we think we're supposed to see."

Gordon Park did indeed own a "small yacht" at the time of his arrest in 1997. But, in 1976, his only vessel was a racing dinghy designed for two sailors, which had never been kept at Coniston. From May that summer, it was being used for a sailing course on a completely different lake: Windermere. "In other words," says Jeremy, "my father would have needed to drive it to one of the two public launching points in Coniston, rig and launch it, sail it five miles down the lake on his own, dispose of the body, then do everything in reverse and get it back to Windermere - all without being seen or missed at the height of the tourist season. If I was going to dispose of a body, I would choose a quieter lake and do it at night."

In reality, he argues, his father was far too occupied with the demands of three young children to be able to murder their mother and dispose of her body without a trace of noise, blood or emotion. It is true though, that he had a classic motive: infidelity. Carol Park, a petite, vivacious school teacher described by one witness as "what you'd call `a goer'", had left her husband repeatedly, without warning, to form relationships with other men. But Park, a well-respected fellow teacher who was awarded custody when she left, had always taken his wife back. At no time in their troubled marriage, she told her doctor in 1975, had he ever used violence or threats against her.

On the day of her disappearance - Saturday, July 17, 1976 - the family had arranged an outing to Blackpool when Carol dropped out, complaining of a headache. Jeremy, six at the time, never questioned his father's version of events, not least because it tallies with his own vivid memories: the purchase of batteries for a Grundig radio to play Abba on the drive to the coast; a ride on the Wild Mouse rollercoaster; a Doctor Who exhibition where his sister was startled by a Dalek. And later, a return to an empty house, with only the abandoned wedding rings by way of explanation on the bedside table. "I remember my dad sitting on the side of the double bed and I asked him, `Where's mum?' And he said, `She's gone again'. He seemed sad and I asked him if he ever cried. `I am crying now,' he said."

It was six weeks before Gordon Park formally reported his wife missing - a fact which didn't help his defence. "He did make some enquiries among close friends," points out Jeremy. "But he didn't go round publicising that his wife had left him, no. That was just his approach. She'd done it before - she'd be back, to contact the kids. We didn't really know it was unusual until she didn't come back to school." A missing person's report yielded no answers. Two years later, Park filed for divorce on grounds of desertion and, after a short-lived second marriage, wed his current wife Jenny Marshall in 1993. His children told the court of an affectionate if occasionally strict father who did his best.

"What we had was all kinds of love and fun and enjoyment, and occasionally we got a smack," says Jeremy. "But if every parent who smacked their children during the Seventies was automatically capable of murder, we'd have to include half the population. He's a warm, gentle man, really, a big softy. He was very cuddly when we were kids. Used to make us Horlicks when we were watching Doctor Who on a Saturday night."

It's a very different picture to the one painted by the prosecution: that of an emotionally repressed, controlling killer - an arrogant "cold fish", as a triumphant police chief would later put it - who planned the disposal of his wife's body with the same meticulousness he brought to his beloved DIY. Accordingly, it was a comparison of the knots on the "body parcel" with those in Park's house, garage and boat which led to the reinstatement of the murder charge. Yet even here, the evidence was so inconclusive that the prosecution's knot expert retracted his arguments as the case went to trial. The knot most used on the body - a granny knot - had not been used by Park anywhere on his property. In any case, in an area full of climbers and yachtsmen, knots proved nothing. More central to the resurrected case was a piece of Westmoreland green slate found on the lake bed in 2004, held to be "very similar" to slate on Park's house. But as even the prosecution eventually acknowledged, the slate had been worked in the Coniston area for hundreds of years and could have come from anywhere.

Another rock, said to have been found on the lake bed with some clothing was supposedly similar to rocks in Park's garden wall. Bizarrely, however, the police diver credited with finding it fainted when it was produced in court. On recovering, he offered no explanation, but denied noticing the rock during his dive and said if he had he would have left it where it was. Subsequently, a geological expert for the defence said there was no evidence the rock had been in the water at all.

More potentially damning - if notoriously unreliable - was the evidence of two "jailhouse snitches" who claimed Park had confessed separately to them during his two-week remand in Preston prison in 1997. Leaving aside the unlikely scenario of a man who has steadfastly protested his innocence to family, friends and lawyers suddenly opening up to complete strangers, their testimony suffered from an embarrassing divergence of content.

Glen Banks, a "highly suggestible" man with a severe learning difficulty with whom Park had briefly shared a cell, claimed: "He said he killed his missus while on a boat in Blackpool." Meanwhile, Michael Wainwright, a 12-joints-a-day cannabis addict with a tendency for "hearing voices", claimed Park had told him he had gone upstairs, found his wife in bed with another man and killed her in a fit of rage. Quite apart from the problem of what happened to the lover, Park is unlikely to have given this account for one simple reason: his house was a bungalow.

Given the circumstantial nature of so much of the evidence, how did the jury come so unanimously to their guilty verdict? Jeremy Park watched it happen. It was, he said, etched on their faces from the moment his father took the stand with the unapologetic air of a schoolteacher addressing his class. "The jury just didn't like him," he says. "Forget innocent till proven guilty, you've got to prove your innocence. It's as simple as that." In an era of instant emoting and reality TV, his father's quiet dignity proved about as attractive to an urban jury as the Queen's stiff upper lip following the death of Diana. "Nowadays, people want to see you crying your eyes out," he says bitterly. "They want drama. So someone with my dad's quiet demeanour, not an emotional person, doesn't fare well. They voted him off, Big Brother style."

It's not hard to see Gordon Park in the tall bespectacled figure of his son. Throughout our meeting at the lakeside, and later pointing out the bungalow where he grew up, he keeps things resolutely factual, admitting only to feeling "angry" about what has happened - though his voice trembles for an instant when he describes fleeing court after the shock of seeing photos of his mother's remains. "When you've had your life ripped apart, your private life splattered all over the press, you're going to feel a little bit angry and defensive," he explains. "My father had faith in the legal system - that the prosecution would have to prove beyond all doubt he was guilty and that the jury would be good enough to see the proof just wasn't there. I think we've all been very naive. Forget dignified silence. You need to go out shouting, get straight on the telly. It's made me very cynical."

At 62, with 14 years of his sentence still to go, Gordon Park is putting a typically stoical face on things: staying fit at the Strangeways gym, practising tai chi, taking a maths degree, discussing religion with his Muslim cellmate - and, of course, endlessly combing his tangled case for some new lead that might help his wife and family, campaigning furiously for him outside.

Their main hope for an appeal seems to lie in three important and so far unexplained sightings which suggest Carol was alive and well on the day her family drove off to Blackpool in 1976. One neighbour saw her at the bottom of the driveway; another saw an unidentified man and a VW Beetle car in the drive for about 20 minutes. Neither was subsequently traced. And at 6pm that night, a woman who knew Carol saw her rushing past without a greeting at the Charnock Richard services on the M6. "Fancy being snobby this far away from Barrow," said the witness to her husband - unaware it would be the last time she would see her alive.

So who did kill Carol Ann Park? Was she with her killer that night? Jeremy has little confidence he'll ever know for sure - at a distance of 30 years, few potential witnesses could be confident of their memories, if indeed they're still alive. "Probably she met somebody that she'd been having an affair with, decided to meet that morning while we were in Blackpool, either for the day or longer - then changed her mind, which she did quite a lot, and got into a fight. I doubt it was cold-blooded murder, probably the heat of the moment - but the man found himself with a body on his hands and had to dispose of it."

Various names - including some ex-policemen - have suggested themselves to Jeremy from the string of his mother's lovers. But there's no real evidence against them, principally, he believes, because none was sought. "Everything is driven by how to get a successful prosecution," he says. "The word `truth' never appears on Crown Prosecution Service policies. After the first few days, when the police have committed themselves to a particular direction, a particular suspect, they don't easily back down." Oddly, the police files from the crucial 1976 missing persons inquiry had gone missing by the time the case came to trial - denying both sides even the benefit of the most accurate and contemporary witness statements.

The family knew at least one man with the capacity for violence: in what the prosecution called a "rare and appalling coincidence", Carol's younger sister, Christine, had been murdered by a boyfriend at the age of 17 in 1969, leaving a daughter, Vanessa, whom the Parks adopted as their own. That boyfriend, John Rapson, was out of prison at the time of Carol's murder, and conceded in a police interview he had been in Barrow in July 1976. While there is no suggestion he murdered Carol, he is one of several men known to her who would make far more plausible suspects than Park.

Ultimately, of course, only one man knows for sure if Gordon Park is innocent - and that's Gordon Park himself. But standing at this lakeside, recalling teenage picnics, Jeremy cannot believe his father could have knowingly and happily sailed his children over the very place where their missing mother lay grotesquely bundled below. "If I thought my dad had killed my mum, I would let him rot in that prison," he says, grimly. "But that's not the truth. We're dealing here with a terrible miscarriage of justice. My mum is the obvious victim - she's dead. But my dad has become another victim. He's locked up every day for a crime he didn't commit - and we can't allow that to happen."

Sunday, July 23, 2006

Long-Separated Father, Daughter Sue L.A. County Foster Care Agency

More "Don't care" government officials who don't care whom they hurt and use secrecy to cover their negligence

There were plaudits all around last fall when a troubled teenager who spent 10 years in foster care was reunited with the father she had hardly known, thanks to what Los Angeles County supervisors described as a "groundbreaking effort" at family unification. But the genesis of that heartwarming story is now the basis of a lawsuit alleging that Los Angeles County officials condemned Melinda Smith, now 17, to a decade of foster homes and institutions by failing to take the most basic steps to find her father.

Melinda's parents were not married when she was born in 1988, but her father, Thomas Marion Smith, agreed to pay child support in 1989. He saw Melinda often, he said, but when she was about 4, her mother moved and left no forwarding address. Two years later, in 1995, after the county had received two complaints of suspected child abuse, Melinda's mother turned the girl over to foster care officials.

Meanwhile, Thomas Smith continued to receive monthly bills and make support payments to the county for several years, while Melinda was — unbeknownst to him — being shuffled through a series of institutions and foster homes.

The Department of Children and Family Services — required by law to use "due diligence" to locate a foster child's noncustodial parent — never notified Smith that Melinda was in foster care and never gave him a chance to claim her, the lawsuit alleges.

The department listed Smith's whereabouts as unknown in court documents filed a decade ago, even though department records indicate that Melinda's caseworker knew that Smith was paying child support through a separate county agency and his address was on file there.

"He's a registered voter with a valid driver's license and an open child support case," said his attorney, L. Wallace Pate. "All they had to do, at any time during those 10 years, was pick up the phone and ask the L.A. County Child Support Services Department, 'Do you have a contact on this man?' "

Ultimately, Smith was located last spring by retired social worker Peggy Crist, who was brought in to help the Department of Children and Family Services launch a program to find permanent placements for teenagers who had spent years in foster care.

After meeting Melinda — who told Crist "the most important thing she could think of … was that she wanted to find her father" — it took the social worker one day to find Thomas Smith, who was living with his wife in a comfortable two-bedroom home in Pine Valley, east of San Diego.

Last July, the father and daughter saw each other for the first time in more than 10 years. In November, Melinda left foster care and moved into her father's home.

Their reunion was celebrated at a Los Angeles County Board of Supervisors meeting Sept. 13, when board Chairman Mike Antonovich praised Crist for saving a child from graduating from foster care at 18 with no support system in place.

"Now that child will have an opportunity for education, a loving family environment and will become a productive citizen," Antonovich said.

But the promise of a new family cannot undo the damage of 10 years in foster care, said Pate, who filed a lawsuit Tuesday seeking unspecified damages against Los Angeles County, the social workers who handled Melinda's case and the private agency that provides attorneys for children in foster care.

If proper procedures had been followed, the lawsuit contends, Melinda would have been placed in her father's custody after her mother relinquished her, rather than languishing in foster care.

Instead, social workers misled Melinda and family court officials by portraying Smith as a "deadbeat dad," the lawsuit said, even though they knew he was paying child support and had received "no notice that his daughter was being detained."

Melinda grew up in seven different foster care placements. For five years, beginning at the age of 7, she lived in a residential treatment center alongside older children convicted of criminal activity because social workers decided her emotional issues ruled out placement with foster parents.

Agency records cited in the lawsuit detail a litany of behavior problems: She threw toys, punched windows and walls, and was frequently restrained by staff members when her tantrums escalated into kicking and biting attacks.

When Melinda was 8, her social worker reported that she refused to speak, suffered from extreme depression and was so "oppositional and defiant" that she was "not appropriate for adoptive placement."

"She feels hopeless and helpless, as if the world is against her," the social worker noted. She was ordered to take Prozac and remained on the medication — at steadily increasing doses — for more than seven years.

The lawsuit says social workers knew that Melinda was deteriorating in the county's custody, care and supervision, yet insisted that her father be stricken from Melinda's case plan.

The father and daughter were deprived of their constitutional rights by county officials' deception, incompetence and flagrant disregard of laws intended to safeguard family ties, Pate said.

Melinda "remained warehoused in defendant's custody against her will, in a restrictive environment on trumped-up grounds and suffered severe deterioration, isolation, depression and loss of … her father's care, nurture and companionship," the lawsuit contends.

"What would Melinda's life have been like if she'd had the chance to know her father, who looked for her, loves her and wanted to know her?" Pate asked. "For the county to pat itself on the back for finally getting them together after all these years … that's like freeing the slaves, then saying 'Oh, well.' "

Pate would not allow the father or daughter to be interviewed. Nor would county officials comment on the case because litigation is pending.

But Louise Grasmehr, director of public affairs for the Department of Children and Family Services, praised the program that reunited Melinda and her father, saying that it has the potential to free hundreds of children from foster care. In the year the program has been in place, 50 children have been reunited with their parents, 80 more are in the process of being adopted by relatives and almost 100 have acquired legal guardians.

Child welfare consultant Kevin Campbell, who trained Crist for the program last summer, said Los Angeles came late to the "family finding" movement but has recently demonstrated a strong commitment to connecting foster children with missing family members.

Until recently, little was done to find relatives of unclaimed foster children because the search process was difficult and tedious, social workers were untrained and overworked, and there was an inherent bias against family members of children in foster care.

There was a presumption that the father was probably unsuitable or uninterested, Campbell said. "The attitude has been 'the apple doesn't fall far from the tree.' If one parent has problems, the other relatives are probably not worth searching for."

But research shows that children almost always fare better with relatives than in long-term foster care. And technological advances now make locating missing family members easy and inexpensive, he said.

Even children who remain in foster care benefit from contact with family members, Campbell said. Residential mental health therapy often fails if "while they are in that institution, children are not feeling love and affection from somebody out of that institution," said Campbell, who is familiar with Melinda's case. "What may have happened with [Melinda], she may have gone a decade without feeling that."

Campbell, who works with child welfare agencies around the country, said homes with willing relatives have been found for more than three-quarters of the children whose cases he has reviewed. The average successful search takes less than six hours.

Crist initiated her search May 16, 2005. By May 17, she had Thomas Smith's current address, along with his addresses for the last 15 years, the lawsuit said.

She enlisted a San Diego social worker to visit Smith, who called Crist and said that he had tried unsuccessfully to find his daughter for years. All that time, he said, he thought she was living with her mother.

Saturday, July 22, 2006

MAXIMUM USE OF VIDEOTAPING INDICATED

Eyes closed and head swaying, George Griller tells detectives he didn't kill the man police dug up in his back yard. I couldn't have, he claims, I'm blind. But when investigators leave the room, Griller opens his eyes, pulls a paper from his pocket and begins reading. A video camera captures Griller's interrogation-room blunder. Jurors later convict him of second-degree murder.

In most states, prosecutors would never get their hands on such a tape. That's because it wouldn't have existed. But police throughout Minnesota record in-custody interviews, a practice stemming from a 1994 state Supreme Court decision. At first, police and prosecutors lamented the ruling, predicting it would keep bad guys from confessing. Now, more than a decade into mandated recording, those same critics are lauding the practice. Taped interrogations have not only proved valuable at trial, they have helped Minnesota authorities avoid accusations of forced confessions and investigative misconduct. "It's the best tool shoved down our throats," said St. Paul police Cmdr. Neil Nelson. "We went kicking and screaming."

In the past year, videotaped interrogations have helped convict a 14-year-old school shooter from Cold Spring, a St. Paul cop killer and a 21-year-old thrill killer from Anoka.

Seven states and the District of Columbia, either by their supreme courts or by legislation, require some form of recording of in-custody interviews. They are Alaska, Minnesota, Wisconsin, New Jersey, Maine, New Mexico and Illinois. Other states, including California, are weighing similar requirements. "I use Minnesota all the time as a shining example of how this reform is a win-win situation for both law enforcement and for the defense and the courts system," said Steven Drizin, legal director for Northwestern University School of Law's Center on Wrongful Convictions. "A 12-year track of recording is one of our strongest arguments to other jurisdictions to get on board."

Jurors and judges no longer have to rely on written police reports of interrogations to decide tricky legal questions, disputes over what was said or allegations of coercion. They get to hear firsthand what defendants said often hours after the crime. It's often not straight-out confessions that do defendants in. Even when suspects deny committing a crime, prosecutors can show jurors conflicting statements, stories that don't add up, and words and actions that are just plain incredible. "It's more dramatic than anybody trying to explain to you how someone looks or acts," Nelson said. "I think it's been powerful for the juries."

One Minneapolis murder suspect notices blood on his shoes as he waits to be interviewed by police. The camera captures him trying to wipe the blood off and helps prosecutors win a conviction. "It really does insure the jury has an accurate picture of what the suspect said and how he or she said it," said Ramsey County Attorney Susan Gaertner. "Jurors want unfiltered reality and getting an audio tape or a video tape of what the defendant said right after the crime happens is really important to them."

In January, Gaertner played for jurors the interview of Harry Evans, on trial for the May 2005 killing of St. Paul police Sgt. Gerald Vick. Evans, calmly smoking a cigarette, denied being involved in the shooting and told the officers they wouldn't find his DNA on the murder weapon. But crime lab scientists did find DNA matching Evans on the gun, sealing his first-degree murder conviction.

"The bottom line is everyone wants justice," said Hennepin County Attorney Amy Klobuchar. "We want to convict the guilty and protect the innocent. Any tool that helps us in that way is a good tool." Klobuchar has spoken to prosecutors and police across the country about the benefits of recording interrogations. She's even put together a highlight tape of sorts showing how suspects sunk themselves during police interviews.

Nelson said taping interrogations has improved perceptions about how police handle suspects and has helped officers figure out what works and what doesn't in the interrogation room. "It's raised the veil of mystery of what happens in that interview room," Nelson said. Last spring, jurors watched the video of Joshua Krueth confessing to the September 2004 thrill killing of a Coon Rapids man. Krueth led Anoka County sheriff's investigators to the murder weapon, a rifle buried in a guitar case in a park. Krueth's defense attorney unsuccessfully tried to have the confession thrown out, arguing that Krueth was high on methamphetamines and later recanted. "It was a key piece of evidence," Anoka County Sheriff Capt. Rob Bredsten said of the video. "It not only showed what he was saying and pointed us to the murder weapon, it showed he was lucid at the time of the statement and not under the influence of drugs."

In 2003, freshman John Jason McLaughlin confessed hours after he gunned down a classmate and fatally wounded another student at Rocori High School. During the interview, the investigator repeatedly asks the teen if he wants to speak with his parents. He reads the suspect his Miranda rights twice. Prosecutors relied on the video at trial to show that McLaughlin wasn't mentally ill at the time of the shootings.

State Supreme Court Justice Paul Anderson said the interrogation tapes are valuable during the appeals process. "It has significantly reduced the number of challenges on appeal based on deficiencies or failures to give Miranda warnings. In the past you have interrogations and there was always a question of Miranda warnings," Anderson said. "When it's right on the tape, it's pretty hard to deny it's been given. It's hard to refute the evidence on the tape."

When the Supreme Court ruled that police must honor juvenile suspects' requests for their parents, justices relied on a tape and transcript of an interrogation where a teen suspect asked police to speak to his mother 13 times. "It's the best tool that we've got to prevent false confessions," said Julie Jonas, managing attorney for the Innocence Project of Minnesota. "It absolutely levels the playing field in preventing coerced confessions and outright lies by police."

Thomas Sullivan, a former U.S. attorney in Illinois, lobbies police, prosecutors and legislatures across the country about the benefits of recording interrogations. He said while nearly 500 police departments across the country voluntarily record some interviews, only a handful of states require it by court order or statute. Sullivan said Minnesota's success story bolsters his cause. He is now lobbying federal agencies to record interrogations. "It was very helpful to me to talk to people up in Minnesota where I knew I had an audience that would say, 'Yes, I record, and here's our experience.' "

In cases of false confessions, police often provide details of the crime and the suspect, worn down by hours of questioning, then parrots the information provided by officers, said Drizin, of Northwestern. A recording allows judges and jurors to see what information a suspect has volunteered and what police might have let slip. Drizin argues that as the public becomes more technology savvy, it demands recording. "It's commonly understood that law enforcement is using cameras to capture our moves," Drizin said. "Jurors have a hard time accepting their refusal to use it in the privacy of an interrogation room."

Friday, July 21, 2006

NASTY BRITISH JUSTICE

A sub-postmaster who was beaten unconscious during an armed robbery has been ordered to repay 3,000 pounds to the Post Office. Dilip Karadava lost a pint of blood and was taken into intensive care after being attacked with a crowbar. He needed physiotherapy to help him walk again, but once Mr Karadava, 42, had recovered from his injuries his employers told him to repay 3,000 of the 6,695 stolen. They argued that he had broken company rules by moving away from an open hatch during working hours. Mr Karadava had been helping an elderly customer when the raiders burst into his shop in Upper Caldecote, Bedfordshire, in December.

Mr Karadava said: “It’s just callous. There was another 14,000 that wasn’t taken because I fought back and they fled. Next time I shall just open the door and say, ‘come in’. It’s not worth risking your life for. I’ve been treated appallingly.”

The West Australian Government could be held liable for millions of dollars in damages after its proceeds-of-crime legislation was labelled "draconian" by High Court judges who said it failed to provide fair access to the justice system. While many defendants across the country had been forced to scrimp on legal representation in the past because their assets had been frozen, the High Court ruled that property could be exempted to pay legal costs.

The decision could open the way for defendants to appeal against their convictions after they had been forced to represent themselves or hire cheaper solicitors, said celebrity lawyer Martin Bennett. Under the 6-1 judgment, Western Australia may also be liable to pay damages for changes in market value to property held under its control. Proceeds-of-crime legislation in other states could also be affected.

Mr Bennett led the landmark case, representing Nigel Mansfield in a battle against the state to access Mr Mansfield's funds to pay for his defence to insider-trading charges. Mr Mansfield's assets have been frozen for the past four years. "The act ... is draconian in its operation and complex in various of its provisions," the judgment said. Judge John Heyson was the only one who voted to dismiss the action. For Mr Mansfield, 65, a former financial adviser, who fought the case with the financial aid of friends and family, yesterday's decision was gratifying but came too late. "For four years this has drained me, utterly and completely," he said.

Thursday, July 20, 2006

"LOST" DNA EVIDENCE SHOWS MAN INNOCENT OF RAPE

A man who spent 23 years in a US prison for rape was freed after DNA evidence proved he did not commit the crime. St Louis County Prosecutor Robert McCulloch called the incarceration of Johnny Briscoe a "terrible mistake", one exacerbated by the crime lab's failure to locate evidence when McCulloch first requested a review six years ago.

Briscoe, who is about 54 years old, did not appear at a news conference announcing his freedom. McCulloch said he is expected to speak to the media tomorrow, after spending a day in seclusion with his family.

Briscoe was convicted of breaking into the apartment of a woman in St Louis County in October 1982, then raping her when she awoke. Among evidence left behind by the rapist was a cigarette butt containing his DNA. Recent testing by two labs confirmed the DNA belonged to another man, who is already serving a life term for another rape. That man's name was not released, and McCulloch said he had not decided whether to file charges against him. "(The victim) of course, is very traumatised by this," McCulloch said. "But she takes comfort knowing that the other man is already in prison."

Briscoe is eligible for up to $US36,000 ($48,000) from the state in compensation for each year he was wrongly incarcerated, but he must agree not to file suit.

McCulloch, who did not prosecute the case when it went to court in 1983, said the evidence against Briscoe was strong. The rapist told the victim his name was Johnny Briscoe; the victim and rapist spoke for over an hour in a lighted room, allowing her to give a description. He asked to call on her again and when he did, police traced the call to a pay phone near Briscoe's home. The victim also provided information for a composite sketch that looked like Briscoe and identified him from mug shots from an unrelated earlier burglary.

Briscoe's alibi also fell apart during his trial, McCulloch said. He claimed he spent the night of the rape at a nephew's home watching the seventh game of the 1982 baseball World Series, during which the St Louis Cardinals beat the Milwaukee Brewers to win the championship. "Unfortunately, when he was asked who won the game, he gave the World Series to the Brewers," McCulloch said. "The alibi was gone at that point."

The rapist and the victim shared a cigarette shortly after the rape. The cigarette was taken as evidence. In 2000, with the county then equipped with technology to test DNA evidence that had previously been untestable, McCulloch ordered a review of about 10 old cases in which DNA evidence might confirm or deny guilt. But the crime lab could find none of the old evidence, including that from the 1982 rape, despite repeated requests from McCulloch over the next few years. But during an inventory of the lab in 2004, the cigarette butt was found in a freezer at the lab.

McCulloch was told of the find late last year, and earlier this month, testing at labs in St Louis County and Columbia, Missouri, confirmed the DNA on the cigarette butt belonged to the other man. "Mr Briscoe is absolutely excluded as the donor of the DNA, " McCulloch said. On Tuesday, a St Louis County judge signed an order finding Briscoe innocent. Officials with McCulloch's office drove to the prison in Charleston and picked him up.

Wednesday, July 19, 2006

CONCEALED EVIDENCE GETS A BRITISH SEX OFFENDER OFF THE HOOK

A former council leader and police authority chairman was yesterday cleared of sexually abusing a teenage boy more than 20 years ago. Colin Inglis, 49, was found not guilty of five charges of indecently assaulting the 13-year-old boy during the early 1980s, when he was a social worker at a children’s home in Hull. The boy, now 37 and a senior financial adviser, had claimed that Mr Inglis performed numerous sex acts on him in the home, at a sports centre and on a camping trip.

His evidence was contested strongly by the Labour politician, whose defence team accused the complainant of telling “a pack of lies, invention, fabrication and elaboration”. Mr Inglis, who chose not to give evidence during his two-week trial, is the former leader of Hull City Council and former chairman of the Humberside Police Authority.

The jury was not told during the trial that in 1997, when the boy was first questioned by police about his relationship with Mr Inglis, officers were investigating abuse allegations against the politician made by another former resident of the home. Nor were they told that in 1987 the father of a third boy complained about the relation- ship between Mr Inglis and his son. Neither complaint led to any criminal prosecution.

The prosecution told the jury at Leeds Crown Court that “the credibility and reliability” of the complainant was at the heart of the case. The defence said that he held a political grudge against Mr Inglis.

Malcolm Swift, QC, for the defence, also claimed that the complainant was motivated by homophobia — Mr Inglis is openly gay — and had hoped to sell his story. Mr Swift said that the alleged victim had a propensity to make false allegations. His account was “like Pinocchio’s nose — it grew so much it left the original story far behind”. While Mr Inglis’s good name had been “dragged through the mud”, the complainant would be able to “slink back into anonymity”.

Graham Hyland, QC, for the prosecution, had urged the jury to think carefully about the alleged victim’s motivation — given that he had a stable working and family life — for telling his story to the police. They should ask themselves, he said, why he would put himself through a court case if his allegations were untrue. The man said that he had tried for many years to block out memories of his time at the children’s home but had been tormented by flashbacks. He claimed in court that Mr Inglis had performed oral sex on him, showered naked with him and fondled his genitals while he was having a bath. Mr Hyland suggested that if the boy had manufactured his entire story because of malice towards Mr Inglis he would have had no reason not to allege more serious offences. He said that any discrepancies in the allegations could be explained by the passage of time. Mr Inglis originally faced fourteen counts of indecent assault, but eight charges were dropped on the orders of Judge James Stewart, QC, and Mr Inglis was cleared by the jury of one charge on Friday.

Outside the court, Alistair Hewitt, Mr Inglis’s solicitor, read a statement in which Mr Inglis said that he had “always believed strongly in the presumption of innocence, the right to silence and the right to trial by jury”. It added: “Despite attempts by many politicians of both main parties over the past dozen years to water down these principles, this trial has reinforced those beliefs.”

Tuesday, July 18, 2006

Like Diogenes with his lantern, Taylor Wells and his assorted advocates have looked for honesty and fairness within the criminal justice system. Like Diogenes, we’ve all come up short.

Taylor’s case has been bandied about by judges, and they basically hang him all over again because of one item—a single document, a statement he gave, without an attorney present, to law enforcement officials shortly after Taylor’s associates robbed an individual of marijuana.

One of these associates shot a person present in the residence that night. Taylor, as most who’ve read this blog know, was convicted of first degree murder, under the felony murder rule. He spent the entire duration of the crime in his car, listening to the radio. His associates affirm, in writing: Taylor Wells did not plan the crime, participate in the crime (other than, under duress, giving one of the participants a ride that night), or benefit from the crime, other than to get enough pot to roll a few joints.

For his role, Taylor received a sentence equal to the sentence of a man who shot a boy in cold blood. Several of the young men who planned the crime, fingered the alleged dealer, and who took the majority of the marijuana are either free, will be free, or received a far lighter sentence than Taylor Wells.

I’ve written many groups about Taylor’s case—the ACLU, the Libertarian party, the media. The media is the only entity that has tried to help. The trend in American culture is to bash the media. But without reporters—and newspapers like the Orlando Sentinel—who’ve made an attempt to bring the truth to light, Taylor’s situation would have been completely hidden.

He phoned me tonight. How this man stays sane is beyond me. He explained that one of the young men who planned the crime has already been released from prison. One of the others, a principal player, should be released within months. Yet another, who was the major player—he conceived the crime, benefited from the crime, and insisted on Taylor providing him a ride that evening—would go home soon if he were able to stay out of trouble in prison.

Taylor received a sentence equal to the sentence given the young man who shot an innocent in cold blood.

What Taylor did or did not know about the plans that evening is really not relevant. I’ve read hundreds of documents, and here’s the impression I’ve formed:

On the night of April 29, 1993, Taylor Wells gave two young men a ride to a house another young man fingered as a drug dealer. Taylor was told—he explains this in his damning statement-- they were going to “pick up some weed.” Taylor was a senior in high school. He’d never been in trouble with the law. Other actors in the crime traveled in two cars.

Taylor had moved into his own apartment. He was working part-time, going to school and planning his future. But picture this: he’s in an apartment, hanging out, and these guys want to go pick up the weed. And these very tough guys, these guys Taylor is fascinated by, tell him he needs to drive a couple of them to get the weed. So he does. He doesn’t drive the shooter. He doesn’t drive the guy who fingered and led the others to the dealer. He doesn’t drive a single guy who fires a shot.

When he arrives at the beach house, Taylor parks the car, turns it off and listens to the radio. If he was a getaway driver, he surely wasn’t an efficient one.

What he doesn’t know: the others go in, put on masks and hold the occupants and visitors at gunpoint. One of the men, Juan Sanchez, a fugitive from New York authorities for a previous killing, shoots a young man in cold blood. Taylor’s passengers return to the car, toss a bag of pot in and a gun and tell him to drive away fast. Within days, Taylor tells police everything he knows, without an attorney present. At the end of his interview, Taylor doesn’t know it, but he is doomed.

I’ve always been a law and order type. You hurt someone, you pay a price. You take property, you pay a price. I believed completely in the criminal justice system—the truth will out.

I’m here to tell you it doesn’t. Well, maybe it does if you're a celebrity, or if you have a bank account fat enough to hire a celebrity attorney.

That a young man is sitting in a Florida prison doing life—doing the same sentence as a man who shot another in cold blood—should scare the hell out of every single one of us. That no one in Florida government will make the hard choice to do something about it should scare the hell out of every single one of us. That there is no group that will help seek justice for this young man should scare the hell out of every single one of us. That several “actors” in the evening’s events are free or will soon be, well, you get the idea.

Taylor Wells doesn’t deserve life in prison for whatever he might have known that night, and it is my opinion he knew very little other than he’d likely be hurt if he didn’t drive his car as instructed.

I tried to obtain a tape of his statement. A very nice man at the Brevard County Courthouse told me making a copy of the tape would be very expensive and cost a lot of money but I could come and listen to it there. I plan to make the time to do that.

I invite anyone reading this to send a letter to Governor Jeb Bush and his cabinet. We live in a country that is supposed to be based on fairness for all, on honor. We are a just nation, right?

There is no honor in the sentence Taylor Wells is serving. There is no justice either.

Punishment should fit the crime. Taylor’s doesn’t even come close.

As a taxpayer, I am angered that I am paying to keep a man incarcerated, when he could be working for a living. As a mother, I am infuriated that a boy who played a minor role got a harsher sentence than those, who by their own admissions, played a major role. As a citizen, I am afraid.

If it happened to Taylor Wells, it could happen to any one of us.

Taylor Wells, as Russell Crawford, an attorney who wrote a definitive book on criminal justice attested, was guilty of naiveté. For that, he got life in prison, with no possibility of parole.

Monday, July 17, 2006

Save the children

The killing of a toddler and sexual abuse of his sister demand answers as to why parents are allowed to retain custody of children they fail to protect

She abandoned her children to the full-time care of two men she had just met at a train station, without asking for their last names and without leaving her phone number. Three weeks later, her three-year-old son had been anally raped and repeatedly given electric shocks before dying of indeterminate causes. Her six-year-old daughter, who had almost certainly witnessed her little brother's agonising last hours, had also endured multiple sexual assaults.

And yet at the trial of the monster who had destroyed her children's lives, "Renae Lennon" could barely make the effort to reply to questioning by the Crown prosecutor, who was seeking to put serial sex offender William Thomas Clare away for murder. If the 35-year-old prostitute and nursing home aide displayed any emotion at all, it was resentment at being called to the witness box. Asked if her son "Jeremy" had shown any changes in behaviour in the weeks leading up to his horrific death, Lennon replied: "Yes, he became more obnoxious."

As usual for Lennon (whose name has been changed only to protect the identity of her daughter "Bianca", now a state ward) it was a striking understatement and startling in its lack of empathy for her children's wellbeing. An in-depth examination of evidence tendered in the two trials of Clare, including several statements by Lennon herself, reveals that alarm bells should have been ringing for her by the night of her son's murder. Her two boisterous, fair-haired offspring were crying out for help from the person who nature -- and the law in Australia -- decrees should care most: their mother.

Jeremy did not just become "more obnoxious" during the time he had spent in the grubby one-bedroom flat shared by Clare and 64-year-old Keith Coles, a pensioner and former council worker. The little boy, who had been fully toilet-trained for almost a year, had suddenly begun urinating on the carpet, as if somehow reluctant to go into the bathroom.

Bianca's behaviour had changed, too. She was "more cheeky", Lennon said in later interviews, and had begun answering her mother back when Clare brought the children to visit her for an hour or two each afternoon. But by Saturday, September 13, 2003, Bianca was clearly desperate for her mother's help. As Lennon made salami-and-cheese sandwiches for dinner, Bianca revealed she was "angry" at Clare because he would not stop "looking at her private parts". It was the sort of statement that would make most parents' blood run cold. Even Lennon, who by then had a long history of leaving her children in filthy circumstances or with inappropriate carers (at least one, and possibly two, of whom had already sexually interfered with Bianca), recognised the distress in her daughter's voice. "I think she was too scared to tell me (more)," Lennon said in an interview less than a week after Jeremy's death. "She was upset. She didn't want it to happen, you could tell."

But, as in the courtroom during Clare's trial, Lennon could not find the interest or the energy to act on behalf of her children. "I wanted to talk to him (Clare) about why he was looking at her and (tell him) not to," she said later, "but my head was throbbing over my left eye and he said, 'I'll take the kids over to my place so you can get some rest'. That was the last time I saw my son alive."

In October 2004, Clare was sentenced to 16 years' jail for raping Bianca at least five times in the week before Jeremy's death. Last week he was also found guilty of the little boy's manslaughter, after admitting to anally raping and repeatedly shocking him with the 240-volt current from an exposed power cord. He remains in Goulburn prison and will be sentenced at a later date.

But has justice been done? For the politically correct, and those whose ideology casts women as perpetual victims rather than protagonists in their own lives, perhaps. But for those who believe a parent is ultimately responsible for the care and wellbeing of their children, two questions still hover like ghosts around the memory of Jeremy Lennon. The first: why was Renae Lennon allowed to walk away from the Supreme Court in Sydney, still surly, resentful and apparently absolved of any responsibility for her children's miserable fate?

The second: why are government authorities who are charged with protecting children, and given budgets running to billions of dollars of taxpayers' money to do so, rarely held accountable when at-risk children are left without help until they are physically broken, sexually degraded or dead?

Tragically, the case of Bianca and Jeremy Lennon is no aberration. In the year Jeremy died, so too did 83 other children known to the Department of Community Services in NSW alone. In 2004, the last year for which these type of figures are publicly available, 72 such children died. Reviewing these deaths, NSW Ombudsman Bruce Barbour said many of these fatalities had "no connection to child protection concerns". But dozens of other children died after DoCS had repeatedly closed their files without further investigation, even when rated "Priority One" or high risk, or because case workers had been given "informal undertakings" by mothers that things would improve.

One such "undertaking" was made by Renae Lennon in July 2001, after the woman's two flatmates took Jeremy to hospital when he returned from a visit to Renae's parents with severe bruising around his throat and jaw. While at the hospital, Bianca disclosed to a nurse that "I have a sore wee-wee". Notes from a subsequent medical examination state she "promptly parted her labia without requiring this specifically", an act considered unusual in a child who is sexually naive. Doctors found foreign pubic hair during the exam, supporting Bianca's revelations that "John", Lennon's boyfriend at the time, had "put his nuts in my wee-wee" and "I've sucked (them)".

Concerned hospital staff told DoCS that Lennon appeared "flat" and disinterested in her daughter's stomach-churning disclosure. But the case worker ultimately decided the children should remain in her care, insisting that DoCS give her further support and that Lennon had given an "informal undertaking" to keep her boyfriend away from the children. Within three weeks, however, Lennon moved house and DoCS was unable to track her down -- until the children turned up two months later, alone in a filthy flat, with nothing but bread crusts to eat and wearing urine-soaked clothes.

When confronted with such harrowing evidence of their failures, the official response from DoCS has usually been that the department is chronically under-resourced or that it is in the process of implementing a five-year, $1.2 billion reform package begun in 2003.

With close to 200,000 reports of child neglect or abuse received each year, it is true the department faces a Herculean task. But is demanding more money and more case workers the only answer? A small but growing band of children's advocates are beginning to speak out, to point the finger at a prevailing orthodoxy within the social work and legal professions that assumes "a bad mother (or family) is better than no mother at all". Rosemary Sheehan, a pre-hearing conference convenor at the Melbourne Children's Court and self-described social worker of the "older generation", is one who takes the "heretical" view that some people should simply never be allowed to be parents.

Sheehan, whose work on decision-making in child protection cases is internationally recognised, says these are often people who have themselves been abused as children, or have serious drug or alcohol addictions, or suffer mental health problems or intellectual disabilities. "It's immensely sad, but in my experience there are people who neither have the capacity nor the motivation to parent," Sheehan says. "They don't attach at all (to their children) and they have neither the insight nor the empathy to care for them properly." She says social work previously drew on medical training, particularly in psychiatry, that acknowledged some people had suffered such damage, either through abuse, drugs or their own genetic history, that their brains simply did not have the capacity to "love" their children adequately.

But in the 1980s an "explosive shift" replaced this approach with an assumption that "all parents love their children, and if something goes wrong, if they show aberrant behaviour, there are socio-economic or class reasons for that". Sheehan explains: "If you ask these workers why haven't they removed certain children, they would say a child is better off with their parents and that the mother will somehow 'get it' and change, given the right services and support. But all the services in the world can only work where a parent is motivated to change and has the capacity to do so. "It's a complete failure to see the child as an individual. We don't want to 'revictimise' the mother so we victimise the child instead."

A plethora of anecdotal evidence also suggests many social workers single-mindedly support the mother, often without examining alternatives, particularly grandparents or fathers. In the Lennons' case, the children's paternal grandmother, Judith Graham, says their father "Sam" was cut out of their lives after Lennon and her family demanded he move out. His child-support cheques were never cashed, dates for contact visits were cancelled and phone calls with the children undermined, and boxes of toys and clothes sent for Christmas and birthdays were returned unopened to the paternal family.

The first time they learned of the shocking abuse and neglect of the children was when a DoCS worker rang Graham after Jeremy's death, to tell her to be in court for a custody hearing for Bianca. Minutes later, the home fax whirred into life and began spewing out page after page of horrific detail of Bianca's sexual abuse. "Before then they had never told my son anything, so we just didn't know," Graham says. "We held out a lifeline so many times. But, in the end, I had to tell myself that she was their mother, that she had the support of her mother, and that surely she would care for her children. "You look back and you feel guilty. You think, 'if only I had done this or that, if only I'd done more'. I'll probably feel that way for the rest of my life." They are poignant, heart-rending words. If only Renae Lennon, or the many social workers who were loath to "revictimise" her, had felt the same.

Dedication

In memory of Fatty Arbuckle, a good and innocent man whose movie career as a comedian was ruined by an opportunistic prosecution. The woman he was accused of murdering almost certainly died of natural causes. He was eventually cleared but the damage was done.

A thought

I love the Mae West story where some judge wearing a robe during the middle of the day, and seated in a high chair peered down and asked her, 'Are you showing contempt for my court?' To which she replied, 'I’m doing my best not to show it, your honor.' Maybe we need to give up trying to not show it."